Case BriefsForeign Courts

Supreme Court of The United States: A nine-Judge Bench, by a majority of 5:4, upheld the travel ban on people from five Muslim-majority countries imposed by President Donald J. Trump (vide Proclamation No. 9645). John Roberts, CJ., while delivering the opinion of the Court, held that the Government has set forth a sufficient national security justification to survive rational basis review.

In September 2017, the President imposed entry restrictions on nationals from eight foreign states whose system for managing and sharing information about their nationals were inadequate according to the President. A review system was undertaken by the Department of Homeland Security which identified those foreign states having deficient information sharing practices and posing national security concerns. Pursuant to the review, the Acting Secretary of Homeland Security recommended entry restrictions on certain nationals from eight foreign states (Muslim majority countries). After consultations with multiple Cabinet Members, the President issued the Proclamation exercising authority under Sections 1182(f) and 1185(a) of Act No. 8 of United States Code (USC). Plaintiffs (respondents herein), the State of Hawaii and Muslim Association of Hawaii, challenged the Proclamation as violating Immigration and Nationality Act (INA) and Establishment Clause. The District Court of Hawaii (and also of Maryland) granted a nationwide preliminary injunction barring the enforcement of the restrictions, which was affirmed by the Ninth Circuit Court of Appeal.

However, the Hon’ble Supreme Court reversed the order of the lower courts and held that the President has lawfully exercised the broad discretion granted to him under the above-mentioned Section 1182(f) to suspend the entry of aliens into US; the provision vests the President with ample power to impose such entry restrictions; the sole requirement being that the President ‘finds’ that entry of such aliens ‘would be detrimental to the interests of the United States’; the President had undoubtedly fulfilled that requirement. The Hon’ble Court dismissed all the challenges put forth by the respondents including the allegation that primary purpose of the Proclamation was religious animus. It was observed, admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control’. Further, the Proclamation was premised on national security concerns and said nothing about religion; entry restrictions on nationals of Muslim-majority countries were limited to those nations that were previously designated by the Congress as posing national security risks. The Court noted three features, firstly, since the imposition of the ban, three countries have been removed from the list; secondly, the Proclamation contains various exceptions to the restrictions; thirdly, it contains a waiver program for all foreign nationals seeking entry as immigrants and non-immigrants. Finally, observing that it cannot substitute its own assessment for the Executive’s predictive judgments on such matters, the Hon’ble Supreme Court upheld the entry ban which is now applicable on five out of original eight Muslim-majority countries. [Trump v.  Hawaii, 585 U.S.__(2018), decided on 26-06-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Anand Byrareddy, J. allowed a criminal petition filed by a Muslim male holding that he was entitled to invoke the provisions of Protection of Women from Domestic Violence Act 2005 (DV Act).

The petition was filed under Section 482 CrPC by the petitioner, a male. Being aggrieved by certain acts of his wife and her family, the petitioner invoked the provisions of DV Act. Learned City Civil and Sessions Judge was not impressed by the action brought on behalf of the petitioner as in his opinion, the Act was heavily loaded in favor of women and it does not contemplate any male member being aggrieved by domestic violence. Feeling aggrieved, the petitioner approached the High Court.

In order to settle the issue, the High Court relied on the Supreme Court decision in Hiralal P. Harsora v.  Kusum Narottamdas Harsora, (2016) 10 SCC 165, wherein the Hon’ble Court had struck down a part of Section 2(a) of DV Act holding it to be violative of Article 14 of the Constitution, and the phrase ‘adult male’ as appearing in Section 2(q) stood deleted. The High Court observed that if the said sub-section is read after deletion of the expression ‘adult male’, it would appear that any aggrieved person, in terms of DV Act, whether male or female, is entitled to invoke provisions of the Act. Having stated thus, the High Court held that petitioner’s complaint could not have been trashed merely on the ground that the Act does not contemplate provisions for men. The petition was accordingly allowed. [Mohd. Zakir v. Shabana, Crl. Petition No. 2351 of 2017, dated 18.04.2018]

Update: By an order dated 28.04.2018, Byrareddy J. withdrew the above-mentioned order and restored the petition to the file.

The order reads as – “Notwithstanding Section 362 of Cr.P.C., the order rendered by this Court earlier on 18.04.2018 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to web host the order passed earlier and to take note of the fact that the order is withdrawn.” [Mohd. Zakir v. Shabana, Crl. Petition No. 2351 of 2017, dated 28-04-2018]